On Information Shearing

“If God did not want them to be sheared, He would not have made them sheep”
— Calvera, the bandit leader, explains the nature of campaign politics to Yul Brynner in The Magnificent Seven

In the end, those tired old rugby analogies turned out to be relevant to this election campaign after all. Thanks to the abysmal standard of the refereeing, John Key – the Richie McCaw of New Zealand politics – was allowed to trap the ball and get away with murder. On (a) asset sales, (b) the Epsom tape and (c) the employment (non) effects of raising the minimum wage, the Key government did not release information – including Treasury advice and research paid for by the taxpayer – highly relevant to the main issues of trust and substance in this campaign, and yet no-one penalised them for doing so.

In the end, the watch-dog agencies (the courts, the media, the Ombudsmen’s office) were caught flat-footed. Thanks to them, voters will be casting their votes tomorrow in a deliberately induced state of ignorance about their current leaders, and their intentions.

The Epsom tape affair was bad enough. Safe to say, the media in Australia, the United Kingdom and the US would have decided that the contents of the tape had an over-riding public interest and would have published them, regardless of how they were obtained – and especially in this case, where a plausible defence exists that the taping was not illegal.

At crunch, the mainstream media in New Zealand decided to play ball with the government. One can understand the incredulity of the Australian reporter interviewed by Mediawatch recently, at the sight of the Herald on Sunday editor choosing to ask the Prime Minister for permission to publish the tape’s contents, or not.

If anything, yesterday’s decision by the Ombudsmen’s office not to release the Treasury papers on the asset sales was even worse, and Beverly Wakem’s decision brings her office into disrepute. Contrast her decision to keep the Treasury papers under wraps with the contrary 2005 ruling – also on the eve of an election – by her predecessor John Belgrave.

Back then, Michael Cullen was trying to keep Treasury data about the student loan scheme hidden, and it was John Key who was trying to get the information out into the open. In the light of Wakem’s decision yesterday, John Armstrong’s NZ Herald commentary in 2005 (headlined “Figures Let Key Turn Tables”) makes very interesting reading:

Belgrave’s instruction to the Government is a rare example of a public watchdog’s bite matching his bark. Noting that the public interest was best served by the reports being released before the election, he flexed his limited muscle to compress the traditional 21-day period within which the Government had to respond to his recommendation to a matter of hours.

The Finance Minister had no option but to release the reports. Not to have done so would have exposed Labour to the charge that it was hiding something until after election day. The story would have turned into one of “who can you trust?”

Indeed. And who can you trust on asset sales? In case you’re wondering how David Farrar reacted in 2005, he was all in favour of transparency back then – “Ombudsman Kicks Ass” was his headline – although he didn’t regard the info as being a game-changer. Maybe the Treasury info on asset sales wouldn’t have been an election game-changer this time either, but thanks to Wakem, we’ll never know.

We do know there is one major difference between the two situations. In 2005, interest free student loans was a highly popular policy, sufficiently so as to over-ride the warning signs disclosed in the Treasury forecasts. In 2011, the asset sales programme is a highly unpopular policy with the public, and thus, full disclosure would be far more likely to be politically damaging. For that reason, Wakem’s collusion with the government’s desire for secrecy seems more likely to damage the validity of tomorrow’s election.

Wakem was well aware of the comparisons between her stance on the eve of the election and the one that Belgrave had taken in 2005. At para 82 of her report, she addresses it in this way:

In respect of Dr Norman’s argument, I acknowledge some apparent similarities between this case and the student loans costing case, where my predecessor, the late John Belgrave, formed the opinion that the information at issue should not have been withheld. Both occurred in the run-up to a general election, and both raised the public interest issue of access to official information to promote an informed electorate. In both cases, Ombudsmen agreed to conduct urgent investigations to determine whether the requesters had received the full information to which they were entitled under the OIA.

However, there are some key differences between this case and the 2005 case, the outcome of which was summarised at pages 29-32 of our 2006 annual report. First, and most significantly, the Chief Ombudsman did not accept that sections 9(2)(f)(iv) and 9(2)(g)(i) of the OIA applied in the 2005 case. Secondly, the information at issue in that case, being costings of a specific policy, was fundamentally different in nature to the information at issue in this case. Thirdly, the nature of the then Government’s public statements about the costings and the assumptions on which they were based gave rise to a particularly strong public interest in disclosure.

It is a fundamental principle of the legislation that each case must be considered on its own merits. My decision in this case is based on the specific information at issue; the stage reached in the advisory and decision-making processes; and the information that is already publicly available. Taking these factors together, and for the reasons I have given, my view is that the applicable withholding grounds are not outweighed by the public interest in disclosure.

OK, lets start with that “most significant” key difference. The OIA section 9 subclauses to which Wakem is clinging refer only as to whether the material is deemed – by the Crown – to be part of the confidential advice stream between departments and ministers. In essence, it is an administrative convenience. It is up to Wakem to assess whether maintaining that claim of confidentiality is – in the circumstances – in the public interest. That’s her job. It is not her job to genuflect to the definition and head for the exit.

The rest of her argument is laughable. Costings were at issue in the election of 2005, she says, but this time the information being sought was “fundamentally different” in nature. Yep, that stuff in 2005 was about student loans, this stuff in 2011 is about asset sales. That’s a difference, alright. But surely, not different enough to over-ride the public interest in disclosure on the eve of an election, one would have thought.

Wakem’s third argument is simply outrageous – her claim is that in 2005, the then-Labour government had made public statements about the costings “and the assumptions on which they were based” sufficient to make Belgrave conclude that full disclosure was imperative. Okay but… how can there be any difference in 2011? Hasn’t the Key government also been making claims all year about the costings on asset sales “and the assumptions on which they were based?”

Wakem’s third rationale is actually an argument for full disclosure, and not for continued secrecy. The only conclusion than can be drawn from this decision is that the Ombudsmen’s office operates with one set of rules when it comes to a centre-left government, but has a different set of rules for the Tories.

Try and have a good election tomorrow, regardless. Lets all hope we don’t wake up on Sunday with the trifecta: National with a mandate for asset sales, Banks and Dunne back in Parliament, and MMP down the gurgler. There’s no rational reason for thinking Winston Peters won’t make it over 5%, but it will still be a surprise if he does.

Against the odds, Phil Goff ran a reasonably good campaign without ever looking like a potential winner. Calvera had some advice for him, too: “Your friends, they don’t like you very much anymore. You force them to make too many decisions. With me, only one decision : do what I say.”

Thanks to everyone who clicked on to Scoop for the coverage, and hope to see you again.


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